High time for flextime, American Investor, Fall 2013

A less rigid approach to scheduling of working time offers win/win solutions for employers and employees

Amendments to Poland’s Labor Code that went into effect on August 23, 2013, introduced important changes in the rules for scheduling and calculating employees’ working time.

The amending act includes provisions designed to counter the effects of the economic crisis and allow businesses in Poland to operate more competitively. Lawmakers also sought to make it easier to create new jobs, allow employers and employees to keep up with new lifestyle trends, and bring employment regulations closer in line with the way people work today.

The key changes introduced this summer are discussed below.

Flextime

The amending act introduced the option of establishing a work schedule in which the employee starts work at different times on different days of the week, or even where the employee is given a certain time range during which he or she can decide when to report for work—an approach commonly known as “flextime.”

The introduction of flextime may be beneficial to both employers and employees. For one thing, it allows employees to finish work on certain days earlier than on other days. However, when flextime is used, it is still necessary to comply with the requirements for daily and weekly downtime for each employee. The standard for daily rest is at least 11 hours of uninterrupted time off each day, and the weekly standard is 35 hours of uninterrupted rest each week. Weekly rest should normally fall on a Sunday. A different day off may be assigned only if the employee performs work that is permitted on Sundays.

The amending act makes it clear that if an employee working under a flextime system begins work again during the same day, it will not constitute overtime. This was also the rule under a 2009 law known as the Act to Ease the Effects of the Economic Crisis on Workers and Businesses, which expired at the end of 2011.

It is important to note that an employee’s workday is not the same as a calendar day, i.e. a 24-hour period running from midnight to midnight. An employee’s workday is a 24-hour period beginning at the time the employee begins work in accordance with the schedule applicable to him or her. For example, if an employee begins work on Monday at 9 a.m., if the same employee starts working on Tuesday at 8 a.m., he or she will have started work twice during the same “day.” Because overtime cannot be planned, before flextime was introduced it was impermissible to establish a work schedule along these lines. Now, with flextime, it is permissible for the employee to start work again during the same “day” without charging overtime. Work schedules providing for different starting times or a range during which the employee may decide to begin work are introduced into collective labor agreements or through an understanding reached with the labor unions—or if labor unions are not in operation at the workplace, through an understanding reached with employee representatives appointed under the procedure in place at the given employer. The employer is then required to forward a copy of the agreement to the labor inspector within 5 business days. Flextime schedules may be introduced without the cooperation of the labor unions or employee representatives only upon written request of the specific employee.

Longer calculation periods

Under the amending act, it is now possible to extend the calculation period for working time and pay in any system of working time. The extended calculation period may not exceed 12 months.

The calculation period may be extended only if justified by objective or technical grounds or reasons related to organization of the work. The grounds for introducing an extended calculation period have been defined fairly broadly, which means that it should not be difficult for many employers to choose this option.

While permitting extension of the calculation period in any system of working time upon fulfillment of certain conditions, the Parliament did not eliminate the specific conditions allowing extension of calculation periods in an equalized working time system to 3 or 4 months. It may thus be assumed that when an equalized working time system is used, there are now two different procedures in place, and two different sets of conditions for extending calculation periods.

Extension of the calculation period to as long as 12 months may be made in a collective labor agreement or through an understanding with the labor unions, or, if there are no labor unions in operation at the workplace, by reaching an understanding with employee representatives appointed under the procedure in place at the given employer. The employer is required to forward a copy of the agreement to the labor inspector within 5 days after the agreement is reached.

Other solutions

The amending act has also introduced the possibility of establishing a work schedule for each employee covering a period shorter than the calculation period, but it must cover at least one month. The employer is required to provide the employee with his or her work schedule at least one week before the employee is to begin work under the schedule.

Work schedules may be made in written or electronic form. Significantly, the employer now has an obligation to establish work schedules, except in specific instances expressly identified in the Labor Code. These include cases where the employee’s working time is task-based, or where the employee works in a flextime schedule at the employee’s own written request.

An express provision has now been introduced into the Labor Code under which the time worked by an employee to make up for time off taken at the employee’s written request in order to handle personal matters does not constitute overtime. Meanwhile, the code now guarantees that such make-up time must not infringe the employee’s right to the minimum daily and weekly rest periods.